Prosecute the Architects of the Torture Regime? Nah.

by Kevin Jon Heller

Still holding out hope that the Obama administration will prosecute the architects of the torture regime? Stop:

The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday.

Some analysts and lawmakers have called for investigations and possible prosecution of those involved because they say four of the memos, disclosed last week by President Obama, illegally authorized torture. Emanuel’s dismissal of the idea went beyond Obama’s pledge not to prosecute CIA officers who acted on the Justice Department’s legal advice.

“It’s not a time to use our energy and our time in looking back” out of “any sense of anger and retribution,” Emanuel said on ABC’s “This Week.” His remarks reflect the White House’s effort to claim a middle ground after the release of the memos, which had been top secret, angered backers of the Bush administration’s interrogation policy.

Obama’s refusal to live up to the US’s international obligations — “looking back” at Chucky Taylor’s torture, fine; “looking back” at the Bush Six’s torture, not so much — indicates how important it is that other countries pursue prosecutions. Fortunately, Judge Garzon in Spain is ignoring the Attorney General’s recommendation that he drop the “fraudulent” case against the Bush Six — although he is going to randomly assign the case to one of the six High Court judges, who may feel differently.

It is unlikely, of course, that other countries will ever get their hands on one of the Bush Six. But at least a concerted international effort to compensate for Obama’s coddling of Bush’s coterie of war criminals would make sure that they don’t take European vacations anytime soon.

5 Responses

Emanuel’s words and the Obama administration’s reasoning are better suited to a personalist discourse reliant on terms intrinsic to the context of moral psychology and even spirituality. But whatever truth they have at the intrapersonal and (by effect) interpersonal level, they are simply beside the point when it comes to following the rule(s) of domestic and international law. It of course may very well be true that some if not many of those interested in pursuing the legal case against the CIA torturers, Bush administration officials, and OLC lawyers who facilitated and legally blessed torture and cruel, inhuman and degrading treatment of prisoners (i.e., denied them humane treatment and due process of law) have less-than-worthy motives, but that is one reason why we subject ourselves to the rule of law, so that such motives are not wholly determinative of legal and other processes and outcomes. And, in fact, in many respects criminal justice represents the sublimation if not transcendence (and thus not simply the canalization) of unjustified anger (or anger that subverts our rational ends) and tit-for-tat retribution (or vengeance).

I’m more inclined than Mr. O’Donnell to simply attribute their words to Realpolitik and little more.

4.20.2009
at 10:23 am EST M. Gross

M. Gross:

It’s a rule of thumb for me to rely on the “principle of charity” when it comes to the attribution or interpretation of motives (and reasons) unless there’s compelling evidence to suggest otherwise (as Freud discovered with his patients), in other words, I accord them the presumptive benefit of doubt such that, generally speaking, they mean what they say. That said, I do believe the temptations of Realpolitik are ubiquitous in modern politics and that such temptations increase in frequency and intensity the higher one ascends the levels of power.

I think realpolitik is to blame. I also think the realpolitik is justified in this case.

I don’t think foreign prosecutions are likely to do much good, quite the contrary. If they have any effect at all it will be to convince Congress to take defensive action which would most likely be along the form of bilateral treaties preventing any executive assistance in these matters, and would also likely take the form of serious attacks on the ICC.

This may be very unpleasant

4.20.2009
at 12:36 pm EST Patrick

This is just a cram down. If we insist that they prosecute they will prosecute. I draw your attention to the Society of American Law Teacher letter released today on the torture memos to President Obama.

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